Last week, Larry Ribstein noted the Fifth Circuit Court of Appeals' extraordinary post-oral argument order commanding the release from prison of William Fuhs, the former Merrill Lynch executive who was convicted along with three of his Merrill colleagues of conspiring to assist Enron in improperly accounting for an asset sale in the so-called "Nigerian Barge case." This week, the other three Merrill Lynch executives are seeking release from prison pending disposition of their appeals.

The Nigerian Barge case is a case study in the dubious nature of regulating business through criminalization of ordinary business transactions and the appalling cost of that policy when four business executives get caught in the cross-fire of the government's demonization of a criminal target such as Enron. As Professor Ribstein and Henry G. Manne have pointed out many times in their writings, the use of criminal law as an in terrorem regulatory weapon is a reign of force that is contrary to the rule of law and is usually far more costly to society than the alleged evils that are the target of the prosecution.